HR Specialist: Employment Law

Clear, common-sense employment law advice that cuts directly to the bottom line. An attorney may say what the law is – but the monthly issues of HR Specialist: Employment Law and its related weekly e-letters explain what managers and human resource professionals should do that is both safe and practical in the real world of business. Learn more about HR Specialist: Employment Law and the two free reports you'll get when you subscribe...

Q. One of our employees went on disability after a motorcycle accident. We terminated him at his request, as he wanted to cash out his 401(k). His doctor recently released him from disability, and he's seeking re-employment for a different position. He drags one foot when walking. Our owner is concerned that if he doesn't offer the ex-employee a job, we may face legal retribution. And he's concerned that if we do bring him back, we'll end up with a workers' comp claim from a slip/fall injury. Do we have any obligation to rehire this employee? —B.O., Pennsylvania

A. Here are the $64,000 questions: Is there a position available? And does the employee have the ability to perform the job's essential functions? If the answer to both questions is "Yes," then you should treat this employee like any other applicant and, if applicable, offer him a job.

Remember, the ADA requires that you provide reasonable accommodations to qualified individuals with a disability. The ADA doesn't, however, require you to create light-duty jobs for disabled workers. Nor does the law require that you hire anyone if no job opening exists.

Note: The EEOC frowns on employers that refuse to rehire qualified employees simply because the worker has suffered some sort of disability.